What’s the Difference Between a Legal Separation and Divorce?

While many people believe that separation and divorce are interchangeable terms, legally speaking they are quite different and carry with them different consequences. For spouses who are facing a breakdown of their relationship, it is important to appreciate the difference and how it can affect your rights and obligations.

What is a Divorce?

A divorce is a declaration made by a court that formally ends a marriage. From a legal perspective, all a divorce means is that the spouses are no longer married, which means they can get married again. Married spouses who are separated and are not divorced cannot remarry. They also cannot sell, mortgage or encumber a matrimonial home without their married spouse’s consent. This does not change if a married spouse cohabits in an a relationship long enough to have a common-law spouse. It is possible for a person to have a married spouse and common-law spouse at the same time if that person does not get divorced.

Common law spouses do not get divorced because they were not married, and therefore have no need for an order saying they are no longer married.

In Canada, spouses are eligible for a divorce after the occurrence of one of three triggering events: adultery, cruelty, or living separate and apart for more than one year. Once a court is satisfied that one of these events has occurred, a spouse is entitled to a divorce, even if their spouse does not consent. In practical terms, most spouses are divorced after living separate and apart for one year. Adultery and cruelty are very hard to prove and these claims would most likely require a trial for their resolution. Given that it would take the average case more than a year to reach a trial, most spouses divorce on the basis of living separate and apart for a year. Once a court grants a judgment for divorce, the spouses are divorced on the 31^st day after the judgment.

An Application for divorce can be made by either spouse, and does not have to be done with the consent of the other. However, before a Canadian Court will grant a divorce, it must satisfy itself that:

1. reasonable arrangements have been made for any children of the marriage, taking account of the Federal Child Support Guidelines;
2. The parties have removed any religions barriers to remarriage over which they have control;
3. At least one of the spouses has lived in the Court’s jurisdiction for at least one year; and
4. The partners have not engaged in connivance or condonation in relation to the Divorce.

What is a Separation?

Under the Family Law Act, a separation occurs where spouses live separate and apart with no reasonable prospect of resuming cohabitation. This is a legal test. It does not require any form of document or a court order. What is required is that an objective observer would say that the spouses are no longer living together as spouses, but are living their lives as separated – and they have ended their spousal relationship. Being separated does not depend on whether spouses are physically separated or not. Spouses can live separate and apart and physically live in the same house, for instance if neither spouse can afford to move out. Likewise, spouses can live in different countries and not be living separate and apart – think of those in military service who are stationed abroad.

Also, living separated and apart does not have to be a mutual decision. One party can announce the marriage is over, or walk out of the house, or stop behaving like a spouse. Once it is clear that has happened, the parties are separated, even if the other spouse does not want to separate.

When a Court assesses whether spouses are ‘separate and apart’, it will look at a number of factors – no one factor is determinative. The Court will look at such factors as:

1. Whether the spouses occupy separate bedrooms;
2. Whether the spouses continue to have sexual relations;
3. Whether the spouses hold themselves out to the community as a couple;
4. The degree and quality of communication between the spouses;
5. Whether the spouses eat meals together as a family;
6. Whether the spouses engage in joint social activities;
7. Arrangements regarding traditionally shared expenses;

Unlike divorce, both married and non-married spouses can legally separate. Once spouses are separated, they can make claims for spousal support and child support (if there are children). However, only married couples can make a claim for an equalization of net family properties – common-law spouses have to rely on equitable claims to establish a claim to any proprietary rights. When spouses separate, it is recommended that they settle their affairs through a separation agreement or court order. This will allow spouses a degree of certainty and predictability in planning their affairs on a go-forward basis. It is always recommended that you speak with a family law lawyer to determine what is the best course of action to ensure that your separation or divorce is as smooth as possible.

John P. Schuman
Devry Smith Frank LLP

John Schuman is a Certified Specialist in Family Law. To learn more about John please click http://divorceangels.ca/vendor/john-p-schuman/?r=7699